Bork: Courts Most Dangerous Branch of Government

In the book he finished shortly before his death, Robert Bork delivered the familiar rhetoric of the right about the evils of unelected judges taking decisions out of the hands of the people and their appointed representatives by overturning laws passed democratically:

“We are now being ruled in some of our most crucial cultural and moral issues by judges who have acquired the power, but certainly not the authority, to take those decisions out of our hands,” he frets in “Saving Justice,” published after the longtime Constitutional authority died last December.

“With each issue it takes out of the hands of the people in order to please the elites, the Supreme Court moves from being what my friend Alex Bickel called ‘the least dangerous branch of government,’ to a place where it can lay fair claim to being the most dangerous,” wrote Bork.

And they really mean that — except, of course, when they don’t. Can one possibly believe that Bork would have objected to the Supreme Court’s ruling in Citizens United, which struck down campaign finance limitations passed by Congress? Or that he would have hesitated for a moment to strike down the health care reform bill upheld by the Supreme Court last year? Or that he would have respected laws allowing assisted suicide or the use of medical marijuana in states that were passed by wide margins in popular referendums?

Bork, like his fellow conservatives, are passionate advocates of judicial restraint and deference to democratic processes when it comes to laws that impede into the private lives of individuals, like laws banning sodomy or the use of contraception. In such cases, they are horrified by the prospect of “black-robed tyrants” overturning the “will of the people.” But if a democratically-passed law restrains the actions of big corporations in almost any way, they transform immediately into “judicial activists” and begin “legislating from the bench,” to borrow two of the vapid catchphrases they love so much. The same is true of federalism, which they support loudly and often and then jettison with all due haste when doing so leads to a result they don’t like.

8 comments on this post.
  1. lofgren:

    Ed, I think you need to take a look at that last paragraph again. What you are describing is somebody who consistently argues that the court system is flawed. I think your second example is supposed to be one where the justices are lauded instead of criticized.

  2. d.c.wilson:

    With each issue it takes out of the hands of the people in order to please the elites

    I really want to know when the word “elites” stopped meaning “billionaires like the Kochs who can buy and sell politicians like sacks of wheat” and now means “Anyone with a high school or higher education.”

  3. Trebuchet:

    Yeah, Ed’s last paragraph is borked!

  4. JoeBuddha:

    d.c. wilson, probably when the average effective education level dropped below high school level.

  5. Gregory in Seattle:

    He was really, really wanted to be on the Supreme Court and was told No. He’s been frothing at the mouth against the evils of the judiciary ever since.

    I believe the expression is, “Sour grapes.”

  6. John Pieret:

    d.c. wilson @ 2

    I really want to know when the word “elites” stopped meaning “billionaires like the Kochs who can buy and sell politicians like sacks of wheat” and now means “Anyone with a high school or higher education.”

    Especially coming from a guy who attended the hoity-toity Hotchkiss School in Connecticut, got his bachelor’s and law degrees (with a Phi Beta Kappa key) from the University of Chicago and was a professor at Yale Law School.

    Apparently “elites” means anyone who disagrees with conservatives AND gets their way.

  7. vmanis1:

    If only Congress had passed the Robert Bork Must Shut Up Act, the U.S. would be rid of him. Not for him tedious litigation based on the Act’s blatant unconstitutionality. No, he’d have respected the Will Of The People, and slunk away, never to be heard from again. Yeah, right.

  8. Brian Carnell:

    There was a lot not to like about Bork — his actions during Watergate were reprehensible IMO and by themselves should have disqualified him from any higher position. And oftentimes this originalism and deference would have led to very ugly results (as it did occasionally with the most famous deferential Supreme Court Justice, Oliver Wendell Holmes).

    “Or that he would have hesitated for a moment to strike down the health care reform bill upheld by the Supreme Court last year?”

    That’s an odd question…obviously no way to answer it for sure, but given that Roberts framed his decision in exactly the sort of language of judicial deference that Bork advocated for, it is not unreasonable to conclude the answer to your hypothetical is that he likely would have sided with Roberts’ view rather than Scalia’s.

    Do you have a specific example in mind where Bork abandoned his views on judicial restraint in order to benefit large corporations? He certainly didn’t change his views on antitrust when the Clinton administration decided to go after Microsoft (which, the last time I checked, was a *very* big corporation).

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